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Dr Muriel Newman

Will the claims ever end?

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Revelations that the Maori Council has lodged a new Waitangi Tribunal claim for the ownership of the country’s fresh water supplies has been greeted with widespread concern. At a time when no new historic Treaty grievances are meant to be able to be lodged, the public are asking whether such claims will ever stop.

The answer of course is “no” – not unless our politicians find the intestinal fortitude to end the sort of blatant opportunism that this demand for water represents. In other words, radical demands for public wealth and resources will keep on coming as long as tribal leaders are allowed to get their way. It is only when the government takes a stand and stops the rorts that things will change and Maori leaders will realise that their future is what they make of it, not what they can fleece off a gullible public.

Even a cursory glance at our history reveals that Maori sovereignty activists have been offered a treasure chest of benefits over the years by politicians eager to avoid conflict. The benefits they have received far outweigh the legitimacy of any claims they might have had, since historic grievances emerging from settler times had been properly dealt with before 1950. In fact, in some cases these claims had been dealt with numerous times even back then. But the settling of claims has not stopped Maori activists from campaigning for more. Nor has it stopped politicians from bending over backwards to give them what they have wanted.

The main reason we are facing such claims goes back to 1975 when the Kirk Labour Government passed the Treaty of Waitangi Act to establish the Waitangi Tribunal as a permanent commission of inquiry into modern-day Treaty grievances against the Crown. This was not enough for Maori sovereignty activists at the time – they wanted the Tribunal to cover historic claims as well, and so in 1985 the Lange Labour Government extended the Tribunal’s mandate back to 1840.

During the Parliamentary debates on these Bills, the Right Hon Sir Robert Muldoon raised concerns about the divisive nature of the 1975 Bill, “It must be emphasised that we are in fact one people and the question can be asked whether special legislation of this type makes us one people or two peoples”. And the MP for Tarawera, Ian McLean raised the alarm over the 1985 Bill, calling it “dangerous” – it had “the potential to trigger disastrous tensions between Maori and Pakeha” – and warning that the future of Maori would not be assisted by “looking backwards rather than forwards; they should be looking forward to their future and to the future of their children”.

Their foreboding proved prophetic. The Treaty of Waitangi settlement process has become racist and divisive. It is morally wrong that today’s struggling taxpayers are asked to pay – yet again – for alleged injustices that occurred almost two hundred years ago. And now the process has become ever-more extreme – there is a widespread re-writing of history and multiple “full and final” settlements, not to mention the increasing use of methods that are unacceptable, such as giving away previously excluded Department of Conservation lands, signing co-management deals that elevate Maori to the status of consent authorities and involve on-going taxpayer funding, and rights of first refusal for Crown property that stretches out for the next 172 years!

The public have never been asked to approve these deals that will extend taxpayers’ liability in perpetuity. That means that not only do taxpayers never stop paying claimants, but they are never rid of the settlement process either. More than ever, governments appear to be push-overs, with iwi negotiators gaining an upper hand. That was certainly evident in 2010 when the Prime Minister had to step in and stop Treaty Negotiations Minister Chris Finlayson giving Tuhoe the Urewera National Park.

To her credit, then Prime Minister Helen Clark took a stand in 2008 to stop the historic claims rort, by changing the law. In the four weeks leading up to the September 1stdeadline, the extent of Maori opportunism became evident with 1,835 new claims lodged. This compared with a total of 1,497 claims that had been received by the Tribunal during the whole 33 years it had been in existence.

At the present time, 30 Treaty settlements have been completed, 16 are awaiting legislation, four are waiting for tribal ratification, 16 are agreed to but are still at the negotiations stage, a further 15 are undergoing negotiation, and a number of others are yet to be negotiated. That means that with well over 50 settlements still to be finalised, serious concerns should be raised about the Government’s capacity to settle deals that are fair on taxpayers. Agreements that lumber taxpayers with obligations that never end, are not acceptable. And since there is no provision in the Treaty settlement process for public input – and the Select Committee that deals with settlement legislation has no authority to alter the deal – speaking out is our only recourse.

When Helen Clark finally realised what a massive gravy train the Treaty settlement process had become, she should have closed off the contemporary Treaty claims process as well. In the 1986 radio spectrum claim, where Maori successfully argued that they had a Treaty right over a resource that was unknown in 1840, an argument was used that would cover all new developments into the future – namely that “where any property or part of the universe has, or may have, value as an economic asset, the Crown has no authority under the Treaty to possess, alienate, or otherwise treat it as its own property without recognising the prior claim of Maori.”

In other words, the claims process will never end unless there is the political will to stand up to the tribal aristocracy and say enough is enough.  By their own assertion iwi are sitting on assets worth many billions of dollars. But disadvantaged Maori are worse off in terms of child abuse, educational failure, welfare dependency and crime, than they were thirty years ago when Labour first embarked on this social experiment to alleviate Maori deprivation through empowering tribes with financial settlements. All that has happened in the interim is that the tribal elite have become extremely rich and powerful, while the poor remain poor – or go to Australia to escape the ever-increasing influence of tribal authorities.

So back to our question about whether there is the political will to end the Treaty grievance industry. It is clear that in the past Labour has demonstrated a commitment to stand up to Maori demands, not only through ending historic claims, but also in legislating for Crown ownership of the foreshore and seabed, against the wishes of Maori radicals whom Helen Clark termed “haters and wreckers”. Labour hasn’t always been successful of course – in 2007, despite removing the Treaty of Waitangi and Maori culture from being the central focus of New Zealand’s new education curriculum, they later gave in to the pressure of Maori outrage and put it all back.

National has not done well at all in standing up to Maori demands. In 1993, instead of passing the colour-blind Electoral Act that had been drafted to introduce MMP – which would have enacted the recommendations of the Royal Commission on the Electoral System to abolish the Maori seats – National succumbed to the protests of Maori activists and put the Maori seats back into our electoral law.1

National is also responsible for one of the greatest injustice of modern times by caving in to the demands of the Maori sovereignty movement and repealing public ownership of the foreshore and seabed. Whether they stand up to Maori over this new claim for water – which is essentially a demand for free shares in the newly privatised State Owned Enterprises – remains to be seen. Certainly the rhetoric is there: Prime Minister John Key has said “No one owns water. It’s like air. No one owns air.” And Deputy Prime Minister Bill English has explained, “There has been a general agreement that there is no mechanism to determine the ownership of water. It’s a public good, like the air.”

In fact, the common law position is that nobody owns water – until it is contained in a tank, pipe, bottle, or some other vessel. At that stage it becomes the property of the person who owns the vessel. All common law rights to water use were nationalised in 1967 under Section 21 of the Water and Soil Conservation Act, with regional councils and unitary authorities having the responsibility for managing water under provisions in the Resource Management Act.

I asked this week’s NZCPR Guest Commentator, public law and Treaty expert, former MP Stephen Franks, if he would explain the situation surrounding this new claim. He starts his excellent analysis The New Zealand Maori Council Water Rights Claim in his usual forthright fashion by explaining, “The Waitangi Tribunal claims just announced by the New Zealand Maori Council are unapologetically an attempt at legal mugging. Though purportedly based on the deep wounds Maoridom will feel if SOE shares are sold before the ownership of water is settled, the NZMC has made it plain that they will go away if they get some soothing free shares. The claims have little apparent legal merit. But on form to date I predict a reasonable chance they will succeed in levering shares out of an easy-touch government.”

So if National is an “easy touch” government, especially now that they have invited the Maori Party to be part of their coalition – even though they did not need to do so – are any of the other political parties likely to take a stand on behalf of the silent majority who feel this whole Treaty claims process is has gone too far?

The Greens could certainly not be relied on – their Maori rights agenda is more radical than most. And now that ACT has only one MP it is unlikely that they will take a stand or a lead. The United Party usually agrees with National, and while the new Conservative Party did take a stand before the election – especially on wanting to restore Crown ownership of the foreshore and seabed – having no presence in Parliament makes it difficult.

So that leaves Winston Peters and New Zealand First. He certainly has the potential to take a strong leadership position. Whether he does so, remains to be seen.